If you do not have a will, The Texas Probate Code determines how your estate will be divided and who will receive what from your estate. Many times, this may not be the way you intended these things to happen.

    Without a will, probate can be much more costly and time consuming for your loved ones and your heirs. There will be delays in the heirs receiving their inheritance, and increased costs when compared to simply probating a will.

    While you may want a minor child or grandchild to inherit your property, minors and other persons who are legally incompetent cannot manage property which they might legally own. Establishing a trust in your will for minors and other persons who are legally incompetent will allow a trustee to carry out your directions in the best interests of your heir. Without a will, a court appointed guardian will manage the estate of the minor or legally incompetent person, which is a costly and time consuming procedure. By adding trust provisions in a will, you can ensure that minors and other legally incompetent persons do not receive property until they reach a certain age or are no longer legally incapacitated.

    By using trust provisions in your will, you can decide when you want your beneficiaries to be able to receive the property which you leave to them. Many clients do not believe that a child is ready at age 18 for the responsibilities of managing their own financial affairs and elect to insert trust provisions in their wills which would keep a child’s share of their estate in trust until the child reaches twenty-one or some older age.

    If the value of your assets is above the threshold for Federal Estate Taxes, a will can be used as an estate tax planning tool that can save a substantial amount of estate taxes.

    If you have one or more minor or mentally incapacitated children, you can designate a guardian who will take care of them while they are still minors or mentally incapacitated if the other parent has died before you.

    In Texas, the costs associated with preparing most wills and handling most probate of wills is usually very reasonable. Unlike a number of other jurisdictions, Texas allows for independent administration if the will contains the appropriate language. Independent administration is a streamlined procedure designed to limit the involvement of the courts in matters pertaining to estate administration and to keep estate administrative and legal expenses to a reasonable level.

Without a will, administration of an estate is supervised by the probate court. Don’t you want take care of these things now, while you can, instead of worrying how your family will take care of them after you’re gone?

Other Planning Documents

    A power of attorney gives the person you select the power to handle your business and financial affairs. The power of attorney can become effective when you become disabled. This one simple document can avoid the need for a costly and time consuming guardianship proceeding if you become mentally or physically disabled.

    A medical power of attorney allows you to designate someone who can make medical decisions for you should you become physically incapable of making those kinds of decisions. This document can go a long way to ensure that you don’t spend the last months of your life in a hospital or in a coma waiting for someone to protect your dignity and humanity. This should always be accompanied by a HIPAA (Health Insurance Portability and Accountability Act) Release, allowing your doctors to discuss your private medical condition with your Medical Power of Attorney designee.

    Designation of Agent(s) for Burial, and Designations of Guardian(s) can also be helpful to memorialize your burial plans with a designee or to provide a Court guidance on who you would choose to be your Guardian, in the event of a catastrophic and incapacitating injury.

   A Directive to Physicians (which is sometimes called a “Living Will”) allows you to decide what type of medical procedures, if any, should be used if you should suffer from a terminal condition or irreversible condition and no longer be capable of making your wishes known. Without the directive to physicians, the decision, and the burden, about whether to keep you on life support would be left to your family and physicians.

    Mr. Barclay can advise you on the proper documents you need to make sure all of your affairs are in order - exactly the way you want them to be, and eliminate the hassles and headaches for your loved ones.

Probate Shortcuts

    Texas law provides several alternatives to traditional probate of an estate. When available, these methods save both time and money. They include: an affidavit of heirship, probating a will as a muniment of title, a small estates affidavit, and a determination of heirship with an order of no administration. Additionally, certain procedures are available in the instances where heirs cannot be identified or a surviving spouse is interested in administering community property. When contemplating any Probate related legal course of action, you need a lawyer that understands Texas law and Texas courts. Byron Barclay understands that saving time and money while not sacrificing quality service are a high priority in an estate administration and is eager to help. Please call The Barclay Law Firm to schedule an appointment.

Affidavit of Heirship

    This family history document describes the decedent, that person's heirs, and is sworn to by someone who is not related but can verify the facts provided. Title companies will generally allow an affidavit of heirship to pass title to real property when affidavits from three separate persons are filed in county property records. This probate alternative is extremely helpful for the surviving spouse when the marriage home was under both person's names.

Small Estates Affidavit

    This document is also a family history document that describes the decedent and that person's heirs. A Small Estate Affidavit requires two disinterested persons as well as signatures from all of the heirs for the estate. The probate estate, except for the family home and non-exempt property, should not total more than $50,000.00. One should note that a Small Estate Affidavit is a court document that, unlike the Affidavit of Heirship, is required to be filed with and reviewed by the local probate court. Additionally, a Small Estate Affidavit can be used as court authorization to give and receive estate property.

Proceeding to Declare Heirship

    This proceeding is sometimes used when neither a Small Estate Affidavit nor Affidavit of Heirship will work. It is a court proceeding to formally declare the identity of heirs. It requires the appointment of a separate attorney to represent possible unknown heirs. Two disinterested persons will also need to attend a court hearing and testify as to the identity of the decedent. The unknown costs of a court appointed attorney to represent unknown heirs make the costs of this proceeding more difficult to determine.

Muniment of Title

    This proceeding is actually a probate proceeding available when a will is present. However, instead of appointing an executor to administer the estate, the will is located and is probated as a muniment of title. This allows transfer of the property identified in the will. No debts against the estate may remain at the time the will is probated.

Application for Order of No Administration

    This proceeding is available when the decedent is survived by a spouse or minor child and the value of the estate (not including the family home and exempt Texas homestead property) does not exceed a court provided for family allowance after also deducting the expenses of the last illness, funeral charges, and legal and court costs. The family allowance is determined by the judge and is based on need for support of the surviving spouse and/or minor children for one year following the decedent’s death.

Community Administration

    Texas law provides that when a spouse dies without a will and all children are born of the marriage, the community property (most property acquired during marriage) passes to the surviving spouse. Further, such spouse can present an affidavit to that effect and pick up a last paycheck, sue to recover community property, and sell or mortgage community property to pay community claims. However, title will still need to be transferred by another probate procedure.

    When one or more children are not also the surviving spouse's, the surviving spouse may request court authorization to administer the community assets as a qualified community administration. However, such proceeding is seldom used for various reasons.

    Please call The Barclay Law Firm to find out how best to minimize the problems for your family after your death, and to ensure your wishes are carried out exactly the way you want.